2013 WI 70
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP394-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Demone Alexander,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 342 Wis. 2d 249, 816 N.W.2d 350
(Ct. App. 2012 – Unpublished)
OPINION FILED: July 12, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 14, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Carl Ashley
JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion filed.)
CROOKS, J., ABRAHAMSON, C.J., BRADLEY concur.
(Opinion filed.)
ZIEGLER, J., concurs. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there was a brief
by Hans P. Koesser and Koesser Law Office, S.C., Kenosha, with
oral argument by Hans P. Koesser.
For the plaintiff-respondent, the cause was argued by
Thomas Balistreri, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
2013 WI 70
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP394-CR
(L.C. No. 2008CF3168)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUL 12, 2013
Demone Alexander,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. We are asked to determine
whether a defendant must be physically present when a judge
holds an in-chambers discussion with a juror during the middle
of a trial. We recognize that a defendant has a constitutional
right to be present at his trial. Kentucky v. Stincer, 482 U.S.
730, 745 (1987). Whether this right to be present at trial
encompasses in-chambers meetings "admits of no categorical 'yes'
or 'no' answer. A conference in chambers might well constitute
part of the trial depending upon what matters are discussed or
passed upon. Likewise, such a conference might not be a part of
No. 2011AP394-CR
the trial in the sense of one's constitutional right to be
present." Ramer v. State, 40 Wis. 2d 79, 84, 161 N.W.2d 209
(1968) (citation omitted). The test for whether a defendant's
presence is required at an in-chambers hearing, or at a
conference in the courtroom after the judge has emptied it of
spectators, is whether his absence would deny him a fair and
just hearing. Id. at 85.
¶2 The defendant, Demone Alexander, was charged with
first-degree intentional homicide and his case was tried to a
jury.1 During the trial, two jurors at separate times approached
the bailiff to discuss a potential bias issue. One juror stated
that she knew a woman in the courtroom gallery, who turned out
to be the mother of Alexander's child, and another said that he
knew one of the defense's witnesses. To resolve the matter, the
judge held separate in-chambers discussions with both jurors to
determine the extent of the bias. Both of Alexander's attorneys
and the prosecutor were present for these meetings, but
Alexander was not. The court ultimately struck the jurors, over
defense counsel's objections.
¶3 Alexander was convicted and sought postconviction
relief, arguing that he had a constitutional and statutory right
to be present during the in-chambers discussions. He argued the
constitutional right is grounded in the Sixth and Fourteenth
Amendments to the United States Constitution and Article I,
Section 7 of the Wisconsin Constitution. The statutory right,
1
The Honorable Carl Ashley presiding.
2
No. 2011AP394-CR
he alleged, stemmed from Wis. Stat. § 971.04(1)(c),2 which
provides that "the defendant shall be present . . . [d]uring
voir dire of the trial jury." The circuit court denied the
motion and the court of appeals affirmed.
¶4 We hold that the circuit court's decision to exclude
Alexander from the in-chambers meetings with the jurors did not
deprive Alexander of a fair and just hearing. As the United
States Supreme Court has outlined, the factors a trial court
should consider in determining whether a defendant's presence is
required to ensure a fair and just hearing include whether the
defendant could meaningfully participate, whether he would gain
anything by attending, and whether the presence of the defendant
would be counterproductive. United States v. Gagnon, 470 U.S.
522, 527 (1985) (per curiam). Alexander would not have been
able to contribute anything to the circuit court's inquiry of
the jurors, and may in fact have intimidated them if he had been
present. Additionally, both of Alexander's attorneys were
present at the in-chambers meetings. Alexander's absence thus
did not violate his constitutional right to be present at his
trial.
¶5 We also hold that Alexander's statutory right under
Wis. Stat. § 971.04(1)(c) to be present during voir dire was not
violated. Voir dire is a preliminary examination of whether an
individual can serve on a jury. In this case, the trial had
2
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version.
3
No. 2011AP394-CR
already commenced and the jurors had already been selected when
the bias issue arose. Section 971.04(1)(c) is thus inapplicable
here. The decision of the court of appeals is affirmed.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶6 Demone Alexander was charged with first-degree
intentional homicide in the shooting death of Kelvin Griffin.
The facts surrounding the shooting are not at issue in this
case. Instead, the questions presented center around the trial
judge's separate in-chambers discussions with members of the
jury, which took place outside Alexander's presence.
Accordingly, we recite only the facts relating to those
discussions.
¶7 Near the end of Alexander's seven-day trial, Juror 10
approached the bailiff and informed him that she knew a woman
who was seated in the gallery. The trial judge then held an on-
the-record meeting in his chambers with the juror. The
prosecutor and both of Alexander's attorneys were present as
well. At the outset of the gathering, the circuit court asked
Alexander's counsel if she would be willing to "waive the
appearance of Mr. Alexander for purposes of this?" The attorney
replied, "We do."3
¶8 The court proceeded to ask the juror how she knew the
woman in the gallery. Juror 10 identified the woman as
"Monique," and said that "[s]he's an old friend of the family.
3
Alexander had two attorneys representing him at his trial.
To avoid unnecessary confusion and for the sake of brevity, we
will refer to them as "counsel" where appropriate.
4
No. 2011AP394-CR
We grew up together." As Juror 10 further elaborated, Monique
"went to school with my sister . . . . [S]he's really my
sister's friend." However, due to a falling out between Monique
and Juror 10's sister, Juror 10 had not seen Monique in six
months. Finally, Juror 10 stated that she did not know what
Monique's connection to the case was.
¶9 After Juror 10 left chambers, the court was informed
that Monique had a child with Alexander. Counsel for Alexander
argued that this fact was not a problem, as Juror 10 "doesn't
have any idea why Monique is even here. So if she doesn't know
anything about it, there's no relationship and no prejudice and
no bias and no nothing." The prosecutor, though, argued that it
would be "dangerous to keep her on the jury" because she might
discover the connection between Monique and Alexander. The
court then ordered Alexander's attorneys to talk to their client
about his relationship with Monique and his knowledge of Juror
10's connection with Monique. After an off-the-record
discussion with their client, counsel for Alexander confirmed
that Monique "is, in fact, his baby's momma. But he has not
seen her in sixteen months. He's not close to her. [And he]
does not know the juror. He's never seen her before."
¶10 The court put off the decision on whether to remove
Juror 10 and proceeded to address another potential juror bias
issue that arose that day. The defense had just called a
witness named Jesse Sawyer to dispute the statement of one of
the State's witnesses who testified that Alexander gave the
murder weapon to Sawyer to hide. After Sawyer finished his
5
No. 2011AP394-CR
testimony that day, Juror 33 told the bailiff that he knew
Sawyer. The circuit court, repeating the process it used
earlier, invited the attorneys and Juror 33 into chambers to
inquire on the record as to the juror's relationship with the
witness. Upon inquiry from the court, Juror 33 described his
relationship with Sawyer as one based on a mutual interest in
Harley-Davidson motorcycles. Sawyer does custom work on the
motorcycles, Juror 33 continued, and Juror 33 would "go by his
house because I'm interested in how he does the bikes because I
want to purchase me a Harley-Davidson. I wanted him to do some
work on my bike." Juror 33 further stated that he had known
Sawyer for three years, and had seen him recently at a party and
at a Harley-Davidson event. Juror 33 did not, however, consider
Sawyer a personal friend, but rather an acquaintance he would go
to if he needed work done on his motorcycle.
¶11 Following Juror 33's departure from chambers, the
judge asked each side to state a position on whether he needed
to be removed. Defense counsel argued against removal, while
the prosecutor equivocated: "I'm uncomfortable with any juror
knowing a witness . . . . [B]ut I'm not asking that he be
struck at this time, and I reserve. If we make it to the end
with 14 [jurors], I don't know what I would do at that point."4
The court then decided it would wait until the conclusion of
4
Fourteen jurors were selected so that two could be
designated as alternates. If at the end of the trial all 14
jurors still remained, the circuit court planned to randomly
pick two to be removed before deliberations.
6
No. 2011AP394-CR
Alexander's trial to determine whether it had to remove either
juror.
¶12 After a weekend break, the trial resumed for closing
arguments. That morning, however, Juror 10 called another juror
to report that she would not be able to make it to court that
day because her boyfriend had been in a car accident. Juror 10
subsequently arrived, and the judge decided to conduct another
in-chambers discussion with her to ask her about the car
accident and to further inquire into any potential bias
resulting from her relationship with Monique. Once again the
lawyers——but not Alexander——were present.
¶13 When asked by the court whether she could be impartial
in light of her relationship with Monique, Juror 10 replied, "I
definitely can . . . . I don't talk to her at all. It doesn't
bother me. I'll be able to go ahead and directly have my own
decision." The prosecutor asked her why she reported her
relationship with Monique to the bailiff and Juror 10 replied,
"I felt it was very important because I didn't know if she was
going to try to retaliate and try to contact me and ask me about
some things [about the case] or not." And in response to
further questions from the prosecutor, Juror 10 said she thought
Monique was somehow connected to Alexander's murder trial.
¶14 The circuit court, pointing to Juror 10's concern that
Monique might "retaliate" against her, struck her from the jury.
Defense counsel noted her objection on the record, and the
discussion moved to Juror 33. The State requested removal and
Alexander's attorney objected, stating that "I don't think
7
No. 2011AP394-CR
there's any basis on this record for him to be struck for
cause." The court sided with the prosecution and removed Juror
33 for cause based on his relationship with the defense's
witness.
¶15 Alexander was found guilty of first-degree intentional
homicide and possession of a firearm by a felon. He
subsequently filed a motion for postconviction relief, arguing
that he had a constitutional and statutory right to be present
when the court questioned Jurors 10 and 33.5 According to the
motion, the circuit court's in-chambers discussions with the
jurors violated his due-process rights and his right to a fair
and impartial jury. See U.S. Const. amends. VI, and XIV, § 1;
Wis. Const. art. I, § 7. As for the statutory violation,
Alexander pointed to Wis. Stat. § 971.04(1)(c), which provides
that "the defendant shall be present . . . [d]uring voir dire of
the trial jury." The circuit court denied the motion, reasoning
that because the in-chambers conversations were not part of the
jury-selection process, Alexander's constitutional and statutory
rights were not violated.
¶16 Alexander appealed and the court of appeals affirmed
in an unpublished opinion. State v. Alexander, No. 2011AP394-
CR, unpublished slip. op. (Wis. Ct. App. May 8, 2012). The
court of appeals concluded that because the in-chambers meetings
with the jurors occurred after voir dire, they were permissible,
5
Alexander raised other issues which are not germane to
this appeal.
8
No. 2011AP394-CR
for Alexander's attorney "was entitled to make the strategic
decision to waive Alexander's presence at the in-chambers
meetings with the jurors." Id., ¶17 (citation omitted).
¶17 We granted Alexander's petition for review and now
affirm his conviction, although on different grounds than the
court of appeals.
II. STANDARD OF REVIEW
¶18 This case requires us to determine whether Alexander
had a constitutional or statutory right to be present during the
court's in-chambers discussions with the two jurors. The
interpretation and application of constitutional and statutory
provisions are questions of law that we review de novo. State
v. Hamdan, 2003 WI 113, ¶19, 264 Wis. 2d 433, 665 N.W.2d 785.
III. DISCUSSION
¶19 We conclude that on the facts of this case, Alexander
was not denied a fair and just hearing by virtue of his absence
from the circuit court's separate in-chambers discussions with
two jurors. Moreover, we hold that Alexander did not have a
statutory right to attend the discussions under Wis. Stat.
§ 971.04(1)(c) because removal of the jurors did not occur
during voir dire.
A. Alexander's Absence From the In-Chambers Hearings Did
Not Violate His Constitutional Right to be Present at Trial
1. Applicable Constitutional Provisions
¶20 Both the United States and Wisconsin Constitutions
contain a right to due process. The Fourteenth Amendment to the
United States Constitution prevents a state from depriving "any
9
No. 2011AP394-CR
person of life, liberty, or property, without due process of
law," while Article I, Section 8 of the Wisconsin Constitution
reads: "No person may be held to answer for a criminal offense
without due process of law . . . ." Due process guarantees a
defendant "the right to be present at any stage of the criminal
proceeding that is critical to its outcome if his presence would
contribute to the fairness of the procedure."6 Stincer, 482 U.S.
at 745.
¶21 A criminal defendant's right to an impartial jury, on
the other hand, flows from the Sixth Amendment to the U.S.
Constitution and Article I, Section 7 of the Wisconsin
Constitution. State v. Mendoza, 227 Wis. 2d 838, 847, 596
N.W.2d 736 (1999). The Sixth Amendment, in relevant part,
states: "In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been
committed . . . ." Similarly, Article I, Section 7 of the
Wisconsin Constitution provides: "In all criminal prosecutions
the accused shall enjoy the right . . . in prosecutions by
indictment, or information, to a speedy public trial by an
impartial jury of the county or district wherein the offense
6
A defendant's right to be present at his trial is also
rooted in the Sixth Amendment's Confrontation Clause. United
States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam). But in
a situation (such as the one at issue in this case) where the
defendant is not confronting witnesses or evidence against him,
the right is located in the Due Process Clause of the Fourteenth
Amendment. Kentucky v. Stincer, 482 U.S. 730, 745 (1987);
United States v. McCoy, 8 F.3d 495, 496 (7th Cir. 1993).
10
No. 2011AP394-CR
shall have been committed . . . ." When "the language of [a]
provision in the state constitution is virtually identical to
that of the federal provision or where no difference in intent
is discernible, Wisconsin courts have normally construed the
state constitution consistent with the United States Supreme
Court's construction of the federal constitution." State v.
Agnello, 226 Wis. 2d 164, 180, 593 N.W.2d 427 (1999) (internal
quotation marks and citations omitted); see also State v.
Schaefer, 2008 WI 25, ¶62, 308 Wis. 2d 279, 746 N.W.2d 457
(determining that the compulsory-process clauses in the Sixth
Amendment and Article I, Section 7 of the Wisconsin Constitution
are cognate provisions). Wisconsin courts may also look for
guidance from lower federal courts in interpreting cognate
constitutional provisions.7 See Rao v. WMA Secs., Inc., 2008 WI
73, ¶¶47-50, 310 Wis. 2d 623, 752 N.W.2d 220.
2. Alexander's Right to be Present at Trial Was Not
Violated
¶22 An accused has a constitutional right "to be present
during his trial, and his right to be present at the trial
includes the right to be present at proceedings before trial at
7
"Cognate provision" refers to the parts of a state
constitution that are modeled on the federal Bill of Rights.
Stanley E. Adelman, Towards an Independent State Constitutional
Jurisprudence or How to Disagree with the Supreme Court and How
Not To, 2002 Ark. L. Notes 1, 1 ("State constitutions typically
contain 'cognate' provisions which are based on and worded
similarly, if not identically, to the various guarantees of
liberty contained in the Bill of Rights of the United States
Constitution.") (footnote omitted).
11
No. 2011AP394-CR
which important steps in a criminal prosecution are often
taken." Leroux v. State, 58 Wis. 2d 671, 689, 207 N.W.2d 589
(1973) (emphasis added) (citation omitted). As for conferences
during the trial, we have "recommended" that these "rarely" be
held without the defendant present. Id. at 690 (internal
quotation marks and citation omitted). "However, the presence
of [a] defendant is constitutionally required only to the extent
a fair and just hearing would be thwarted by his absence. . . .
The constitution does not assure 'the privilege of presence when
presence would be useless, or the benefit but a shadow.'" Id.
(quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07 (1934)),
overruled on other grounds by Malloy v. Hogan, 378 U.S. 1
(1964)). Furthermore, "whether the defendant has a right to
attend a conference in chambers . . . admits of no categorical
'yes' or 'no' answer. A conference in chambers might well
constitute part of the trial depending upon what matters are
discussed or passed upon. Likewise, such a conference might not
be part of the trial in the sense of one's constitutional right
to be present." Ramer, 40 Wis. 2d at 84.
¶23 We acknowledge that some of the language in our case
law has been in tension with the concept that a defendant does
not have an absolute constitutional right to attend every in-
chambers conference. For example, in State v. Burton, 112 Wis.
2d 560, 563, 334 N.W.2d 263 (1983), the circuit court
communicated twice with the jury——outside the presence of either
the prosecutor or defense counsel——during deliberations. Id.
The discussions concerned the process for turning over the
12
No. 2011AP394-CR
sealed verdict to the court as well as scheduling dinner and
hotel arrangements in the event the jury could not reach a
verdict by the end of the day. Id. at 563-64. We held that
"communication between a judge and a jury, while the jury is
deliberating, outside the courtroom and outside the presence of
the defendant and defense counsel constitutes constitutional
error, if the defendant has not waived the constitutional right
to be present." Id. at 570.
¶24 This holding, however, was in direct contradiction to
our decision just three years earlier in May v. State, 97 Wis.
2d 175, 293 N.W.2d 478 (1980). In that case, during
deliberations the jury asked the circuit court the following
question related to the charged offense of delivering a
controlled substance as a party to a crime: "'By withdrawing
from a conspiracy has a person removed themselves (sic) from
aiding and abetting the commission of a crime?'" Id. at 180
(quoting the jury note) ("sic" in original). The court answered
the question "no," without informing the defendant or his
attorney. Id. Two issues related to this incident were raised
on appeal: (1) did the circuit court err in answering the
question in the absence of counsel?; and (2) did the circuit
court err in answering the question in the absence of the
defendant? Id. As to the first question, we held that because
"there was no waiver in this case, counsel should have been
given the opportunity to confer with the court about the
appropriate response to be given to the jury's question. It was
error for the trial court to answer the question without
13
No. 2011AP394-CR
notifying counsel." Id. at 183-84. On the second question,
however, we held that, "[a] fair and just trial was not thwarted
by the court's answering that question outside the defendant's
presence. The question posed by the jury dealt with a question
of law and the trial court answered it correctly." Id. at 186.
Additionally, "[n]othing transpired which was prejudicial or
harmful to the defendant's cause, especially in view of the fact
that the trial court subsequently reread to the jury the
instructions concerning party to a crime." Id. All that due
process and Wis. Stat. § 971.04 required was that the
defendant's attorney be present. Id. at 185-88.
¶25 As Burton and May are in conflict, we must overrule
one of them. We now hold that May is more soundly reasoned and
more consistent with the precedent of this court and that of the
U.S. Supreme Court. As we have stated, "the presence of [a]
defendant is constitutionally required only to the extent a fair
and just hearing would be thwarted by his absence . . . . The
constitution does not assure 'the privilege of presence when
presence would be useless, or the benefit but a shadow.'"
Leroux, 58 Wis. 2d at 690 (quoting Snyder, 291 U.S. at 106-07).
Adopting a requirement that a defendant must always be present
whenever a court speaks with members of the jury would render
the above-quoted language from Leroux meaningless. More
importantly, it would impose an unreasonable and unnecessary
burden upon trial judges, who would be forced to ensure the
presence of defendants at meetings where they had nothing to
contribute to their own cause, and where their presence could in
14
No. 2011AP394-CR
fact be highly counterproductive. The Constitution does not
require criminal proceedings to be undermined so significantly
in this way, and for so little benefit to the defendant. That
is why our better-reasoned case law provides that whether a
defendant must be present when a court meets with members of the
jury "admits of no categorical 'yes' or 'no' answer." Ramer, 40
Wis. 2d at 84. All that is required when the court communicates
with members of the jury is that the defendant's attorney be
present. See May, 97 Wis. 2d at 183-84.
¶26 Our carelessness in Burton also led this court astray
in State v. Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d
74, a case Alexander relies on heavily. In that case, the issue
once again was the propriety of "the circuit court's ex parte
communications with the jury during deliberations outside the
presence of the defendant and without notice to or consultation
with the defendant." Id., ¶23. We began our analysis on this
issue by quoting the U.S. Supreme Court edict that "[o]ne of the
most basic of the rights guaranteed by the Confrontation Clause
is the accused's right to be present in the courtroom at every
stage of his trial." Id., ¶39 (quoting Illinois v. Allen, 397
U.S. 337, 338 (1970) (alteration in original)). The
Confrontation Clause, however, does not apply when the defendant
is not confronting witnesses or evidence against him. United
States v. McCoy, 8 F.3d 495, 496 (7th Cir. 1993). As Anderson
centered on the defendant's right to be present when the trial
court spoke with the jury during deliberations, its reliance
upon a Confrontation Clause case was incorrect.
15
No. 2011AP394-CR
¶27 We then moved to a discussion of Burton and Williams
v. State, 40 Wis. 2d 154, 161 N.W.2d 218 (1968), and concluded
that "an accused has a right to be present whenever any
substantive step is taken in the case." Anderson, 291 Wis. 2d
673, ¶42 (emphasis added). This court never defined
"substantive step," but nonetheless concluded——ipse dixit——that
"[a] substantive step in a trial for which an accused has a
right to be present includes the circuit court's communications
with the jury during deliberations." Id., ¶43 (footnote
omitted). For support of this statement we cited to Burton and
a slew of court of appeals cases relying on that decision.
Anderson, 291 Wis. 2d 673, ¶43 n.20. At the end of that string
cite, though, we tacitly acknowledged but did not confront the
fact that May and Burton conflicted. Anderson, 291 Wis. 2d 673,
¶43 n.20.
¶28 What is more, Anderson never cited to Leroux, nor
Ramer, which made clear that a defendant has a due-process right
to be present at an in-chambers meeting only if his absence
would deny him a "fair and just hearing." See Leroux, 58 Wis.
2d at 690; Ramer, 40 Wis. 2d at 85. With a sleight of its hand,
Anderson changed what should have been a fact-specific due-
process inquiry (did the communication between the judge and
jury deny the defendant a fair and just hearing?) into an
absolute Confrontation Clause right to be present whenever the
trial court speaks with members of the jury. We thus withdraw
all language from Anderson intimating such a right. See 291
Wis. 2d 673, ¶¶35-44.
16
No. 2011AP394-CR
¶29 Federal case law also supports our conclusion that
Burton and Anderson are outliers. The U.S. Supreme Court has
said that the "mere occurrence of an ex parte conversation
between a trial judge and a juror does not constitute a
deprivation of any constitutional right. The defense has no
constitutional right to be present at every interaction between
a judge and juror, nor is there a constitutional right to have a
court reporter transcribe every such communication." Gagnon,
470 U.S. at 526 (internal quotation marks and citation omitted).
And in a case where the defendants were excluded from a
conference concerning whether to dismiss a group of jurors, the
United States Court of Appeals for the Third Circuit put it
persuasively and succinctly: "It is clear that there is no
constitutional right for a defendant to be present at a
conference in chambers concerning dismissal of a juror." United
States v. Provenzano, 620 F.2d 985, 997-98 (3d Cir. 1980); see
also McCoy, 8 F.3d at 497. All that the Constitution requires
at such a conference is the presence of defense counsel. See
Ellis v. Oklahoma, 430 F.2d 1352, 1355 (10th Cir. 1970).
3. Alexander Received a Fair and Just Hearing
¶30 While Alexander had no automatic constitutional right
to be present during the circuit court's in-chambers discussions
with Jurors 10 and 33, his presence was required "to the extent
a fair and just hearing would be thwarted by his absence."
Leroux, 58 Wis. 2d at 690 (citation omitted). Factors a trial
court may consider in determining whether a defendant's presence
is required at an in-chambers conference with a juror to ensure
17
No. 2011AP394-CR
a "fair and just hearing" include whether the defendant could
meaningfully participate, whether he would gain anything by
attending, and whether the presence of the defendant would be
counterproductive.8 See Gagnon, 470 U.S. at 527. In a situation
such as the present case, where a judge is conducting an in-
chambers meeting to determine whether a juror is biased based on
an account of the juror's connection to the case, the presence
of the defendant would in no way help to resolve the issue and
may actually hinder the proceeding. There was presumably
nothing Alexander could have contributed on either the subject
of Juror 10's relationship with Monique or Juror 33's
association with Sawyer, as Alexander has never alleged that he
was aware of these connections. In fact, both jurors may very
well have been intimidated and deterred from speaking
forthrightly about their potential bias with Alexander seated
only a few feet away. Cf. United States v. Bertoli, 40 F.3d
1384, 1397 (3d Cir. 1994) ("[W]e doubt whether the jurors would
have been as comfortable discussing their conduct [in chambers]
had [the defendant] been present.") (footnote omitted). This
concern is particularly acute in Juror 10's case, as she was
explicitly afraid of "retaliation" from a woman who turned out
to be the mother of Alexander's child. Additionally,
Alexander's attorneys were permitted to leave chambers to speak
with him whenever they needed his input. Alexander was thus not
8
This list is not exhaustive, as future cases will present
circuit courts with facts that cannot be anticipated.
18
No. 2011AP394-CR
denied a "fair and just hearing" by virtue of his absence from
the judge's chambers.9
B. Wis. Stat. § 971.04(1)(c) Does Not Apply
¶31 Alexander also asserts that he had a right to be
present at the in-chambers meetings based on Wis. Stat.
§ 971.04(1)(c), which mandates that a defendant "be
present . . . [d]uring voir dire of the trial jury." "Voir
dire" is not defined in the statute, but Black's Law Dictionary
defines it as "[a] preliminary examination of a prospective
juror by a judge or lawyer to decide whether the prospect is
qualified and suitable to serve on a jury." 1710 (9th ed. 2009)
(emphasis added). Other sources define it similarly. See James
H. Gold, Voir Dire: Questioning Prospective Jurors on Their
Willingness to Follow the Law, 60 Ind. L.J. 163, 163 (1985)
("During the pre-trial jury selection process known as voir
dire, criminal defendants often seek to question prospective
jurors as to their willingness and ability to follow specific
rules of law.") (footnote omitted); Robert E. Larsen, Navigating
the Federal Trial, § 4:1 (2012 ed.) ("Voir dire is a preliminary
9
Rather than grappling with any of the factors articulated
by the Supreme Court in United States v. Gagnon, 470 U.S. 522,
527 (1985) (per curiam) to determine whether Alexander was
denied a fair and just hearing, Justice Crooks nakedly asserts
that "Alexander's presence at these conferences was critical to
the fairness of the proceedings." Justice Crooks's concurrence,
¶71. Justice Crooks does not answer what Alexander could have
contributed to the in-chambers conferences, nor does he address
the threat that would have been posed to the jurors' candor had
they been forced to discuss their potential bias issues with an
accused murderer seated a few feet away. See Gagnon, 470 U.S.
at 527.
19
No. 2011AP394-CR
examination of potential jurors by a judge or lawyer to
determine whether the prospect is qualified and suitable to
serve on a jury."). Here, the examination of Jurors 10 and 33
occurred during the trial and after both had been selected as
jurors. The in-chambers hearings were thus not part of voir
dire. The court of appeals cases relied on by Alexander
supporting the proposition that a defendant has a right to be
present during in-chambers voir dire are as a result inapposite.
See State v. David J.K., 190 Wis. 2d 726, 735-36, 528 N.W.2d 434
(Ct. App. 1994) (holding that the defendant had a constitutional
and statutory right to be present when the circuit court
privately questioned three jurors in chambers during the middle
of voir dire); see also State v. Tulley, 2001 WI App 236, ¶¶6,
10, 248 Wis. 2d 505, 635 N.W.2d 807 (reaffirming David J.K.).10
10
Wisconsin Stat. § 971.04(1)(b) protects a defendant's
right to be present "[a]t trial." Justice Crooks contends that
Alexander had a right to attend the in-chambers discussions
pursuant to that provision. Justice Crooks's concurrence, ¶58.
However, Alexander did not make that argument before this court.
We therefore do not address the question. See State v. Johnson,
153 Wis. 2d 121, 124, 449 N.W.2d 845 (1990) ("This court will
not consider the issues respondent wishes to have considered
unless they are asserted in the brief and fully discussed in
that brief to this court.").
20
No. 2011AP394-CR
IV. CONCLUSION
¶32 We hold that the circuit court's decision to exclude
Alexander from the in-chambers meetings with the jurors did not
deprive Alexander of a fair and just hearing. Alexander would
not have been able to contribute anything to the circuit court's
inquiry of the jurors, and may in fact have intimidated them if
he had been present. Additionally, both of Alexander's
attorneys were present at the in-chambers meetings. Alexander's
absence thus did not violate his constitutional right to be
present at his trial.
Nonetheless, Justice Crooks considers the issue
sufficiently pled because Alexander's brief here cites to State
v. Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d 74, and
"Anderson considers both a defendant's statutory and
constitutional right to be present 'at trial.'" Justice
Crooks's concurrence, ¶47. True enough. But Anderson also
considered "whether the circuit court committed error by failing
to make a record of or preserve a record of its statements or
comments to the jury relating to the case" under Wis. Stat.
§ 805.13, 291 Wis. 2d 673, ¶¶77-78, and "whether the circuit
court erred by refusing the jury's requests to have the
defendant's and the victim's in-court testimony read to it while
allowing the jury during deliberations to see and hear the
victim's videotaped interview." Id., ¶82. Alexander cited 21
other cases in the same brief, each of which presented separate
issues. It would be aberrant indeed to consider an issue raised
because a case cited in a litigant's brief mentioned the
particular issue. Appellate courts have higher pleading
standards than this. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) ("It is not enough merely to mention a
possible argument in the most skeletal way, leaving the court to
do counsel's work, create the ossature for the argument, and put
flesh on its bones."); Rivera-Gomez v. de Castro, 843 F.2d 631,
635 (1st Cir. 1988) ("Judges are not expected to be mindreaders.
Consequently, a litigant has an obligation to spell out its
arguments squarely and distinctly . . . , or else forever hold
its peace.") (internal quotation marks and citation omitted).
21
No. 2011AP394-CR
¶33 We also hold that Alexander's statutory right under
Wis. Stat. § 971.04(1)(c) to be present during voir dire was not
violated. Voir dire is a preliminary examination of whether an
individual can serve on a jury. In this case, the trial had
already commenced and the jurors had already been selected when
the bias issue arose. Section 971.04(1)(c) is thus inapplicable
here.
By the Court.—The decision of the court of appeals is
affirmed.
22
No. 2011AP394-CR.ssa
¶34 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I agree
with and join Justice Crooks' concurrence.
¶35 I write separately to address the majority opinion's
misreading of Wis. Stat. § (Rule) 971.04(1)(c), majority op.,
¶¶5, 19, 38, 40, and to explain that Wis. Stat. § (Rule)
971.04(1)(c) has to be read to give a defendant the right to be
present "when the jury is being selected." Here is why.
¶36 Wisconsin Stat. § 971.04(1)(c) was created by the
legislature.1 When created, Wis. Stat. § 971.04(1)(c) read as
follows:
971.04 Defendant to be present. (1) Except as provided
in subs. (2) and (3), the defendant shall be present:
. . . .
(c) At all proceedings when the jury is being selected
(emphasis added).
¶37 In 1997, in the exercise of its rule-making powers and
at the request of the Judicial Council, the Supreme Court (by
Supreme Court Order 96-08, eff. July 1, 1997) adopted numerous
provisions relating to juror use and management and amended the
legislatively created Wis. Stat. § (Rule) 971.04(1)(c) to read
as follows:
971.04 Defendant to be present. (1) Except as provided
in subs. (2) and (3), the defendant shall be present:
. . . .
(c) During voir dire of the trial jury (emphasis
added).
1
§ 63, ch. 255, Laws of 1969 (eff. July 1, 1970).
1
No. 2011AP394-CR.ssa
¶38 As a result of the Supreme Court's amendment of Wis.
Stat. § 971.04(1)(c), a defendant's right to be present is
stated in terms of "voir dire" instead of "when the jury is
being selected." "Voir dire" ordinarily refers to the selection
of jurors before trial. If the term "voir dire" is given this
limited meaning, the Court's change of the legislative language
curtailed the defendant's legislatively granted right to be
present at all proceedings when the jury is being selected.
¶39 Such a curtailment of a defendant's legislatively
granted right arguably exceeds the Court's powers. The Supreme
Court may not promulgate rules that "abridge, enlarge or modify
the substantive rights of any litigant." Wis. Stat.
§ 751.12(1).
¶40 Furthermore, it is obvious that the Court did not
intend the rule to modify a defendant's substantive rights.2 In
changing the language of Wis. Stat. § 971.04(1)(c), the court
did not have in mind a proceeding in which a challenge is made
to a juror mid-trial, as in the present case; such a challenge
is not a usual occurrence.
¶41 That the Supreme Court (and the Judicial Council,
which petitioned for the change) did not mean to limit a
defendant's rights is clearly evidenced in the Judicial Council
Note appended to Supreme Court Order 96-08.
2
The court of appeals stated that it "perceive[d] no
substantive change in the statute" as a result of the rule
modification. State v. Harris, 229 Wis. 2d 832, 839 n.3, 601
N.W.2d 682 (Ct. App. 1999).
2
No. 2011AP394-CR.ssa
¶42 The Judicial Council's proposed change in the language
of Wis. Stat. § 971.04(1)(c) explains that the change was meant
to clarify that a defendant has a right to be present only when
"the jurors themselves were present" and not during the initial
selection of names from lists, which ordinarily occurs before
3
the defendant is charged or the trial jury is selected.
¶43 In light of the legislatively created right of a
defendant to be present at all proceedings when the jury is
being selected and the reason proffered by the Judicial Council
for the change of language in Wis. Stat. § 971.04(1)(c) proposed
to the Court, I conclude that the language of Wis. Stat.
§ (Rule) 971.04(1)(c) (incorporating the Supreme Court rule) has
to be interpreted to have the same meaning as the legislatively
created right of a defendant to be present at all proceedings
when the jury is being selected.
¶44 In-chambers proceedings with jurors present to
determine which jurors will continue to serve on the jury, like
the one in the instant case, are proceedings during which the
jury is being selected; in my opinion, the defendant had a
statutory right to be present.
3
Judicial Council Note, 1996, Wis. Stat. § 971.04:
This statute [sub. (1)(c)] defines the proceedings at
which a criminal defendant has the right to be
present. The prior statute's [sub. (1)(c)] reference
to "all proceedings when the jury is being selected"
was probably intended to include only those at which
the jurors themselves were present, not the selection
of names from lists which occurs at several stages
before the defendant is charged or the trial jury
picked.
3
No. 2011AP394-CR.ssa
¶45 With this explication of Wis. Stat. § (Rule)
971.04(1)(c), I join Justice Crooks' concurring opinion.4
4
I concur in the mandate because here the defendant chose
to waive his right (through counsel and his own actions) to be
present when the jury was being selected during trial. Wis.
Stat. § 971.04(3). The instant case does not present the
situation in which a defendant voluntarily absents himself
during jury selection before trial. For a discussion of this
issue that is not presented in the instant case, see State v.
Koopmans, 210 Wis. 2d 670, 678-79, 563 N.W.2d 528 (1997); State
v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. 1999);
State v. Dwyer, 181 Wis. 2d 826, 512 N.W.2d 233 (Ct. App. 1994).
4
No. 2011AP394-CR.npc
¶46 N. PATRICK CROOKS, J. (concurring). Alexander had
both a statutory and a constitutional right to be present at
each of the in-chambers conferences that occurred with sitting
jurors during his trial for the purpose of determining the
composition of the jury. His rights were waived for him by his
counsel and by his own actions in voluntarily absenting himself.
The Wisconsin legislature gave him the statutory right to be
present "at trial,"1 and the in-chambers conferences in question
clearly occurred "at trial." Additionally, Alexander had a
constitutional right of due process to be present at the in-
chambers conferences because the circumstances of this case put
it into the category of cases where "a fair and just hearing
would be thwarted by his absence."2
¶47 I write separately to address a statutory requirement
that entitles a defendant to be present in a judge's chambers
when the judge communicates with members of the jury where, as
in this case, that communication is part of a determination of
which jurors will continue to serve on the jury. It would seem
disingenuous for the court not to consider Wis. Stat.
§ 971.04(1)(b) when discussing whether Alexander has a statutory
right to be present at the in-chambers conferences at issue
1
Wis. Stat. § 971.04(1)(b). All citations to the Wisconsin
Statutes reference the 2011-2012 version.
2
Snyder v. Massachusetts, 291 U.S. 97, 108 (1934),
overruled on other grounds by Malloy v. Hogan, 378 U.S. 1
(1964).
1
No. 2011AP394-CR.npc
under Section 971.04. Counsel for Alexander relied on State v.
Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d 74, in both
his brief and at oral argument. Anderson considers both a
defendant's statutory and constitutional right to be present "at
trial."
¶48 The statute at issue today is not complicated; it
simply provides a defendant with the right to be present at
trial. In fact, the State agreed that the in-chambers
discussions in question happened "at trial." The definition of
what constitutes "at trial" is settled and uncontroversial, and
it certainly encompasses the in-chambers conferences at issue in
this case.
¶49 The majority errs in concluding that Alexander had no
constitutional right to be present at the in-chambers
conferences at issue. In doing so, it abandons principles
articulated in State v. Anderson,3 which is a longstanding, well-
reasoned precedent from this court. An in-chambers conference
that deals with the ability of sworn jurors to continue to serve
on the jury is an exceedingly important occurrence in a criminal
trial, and a defendant's absence from it could frustrate his or
her ability to have a fair and just hearing. Therefore, I would
hold that Alexander had a constitutional due process right to be
present at the in-chambers conferences at issue.
¶50 Even though Alexander had both a statutory and
constitutional right to be present at all of the in-chambers
3
State v. Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d
74.
2
No. 2011AP394-CR.npc
discussions concerning an individual juror's ability to remain
on the jury, he chose to waive those rights through counsel and
through his own actions. Therefore, the court of appeals
correctly denied Alexander's motion for a new trial, and I
respectfully concur.
I. ALEXANDER'S STATUTORY RIGHT
¶51 Wisconsin Stat. § 971.04 provides a defendant the
right to be present during certain enumerated proceedings, at
trial, and at sentencing.4 This statutory right clearly includes
a right to be present at trial and at voir dire.
4
Wis. Stat. § 971.04 provides:
(1) Except as provided in subs. (2) and (3), the defendant
shall be present:
(a) At the arraignment;
(b) At trial;
(c) During voir dire of the trial jury;
(d) At any evidentiary hearing;
(e) At any view by the jury;
(f) When the jury returns its verdict;
(g) At the pronouncement of judgment and the imposition of
sentence;
(h) At any other proceeding when ordered by the court.
(2) A defendant charged with a misdemeanor may authorize
his or her attorney in writing to act on his or her behalf in
any manner, with leave of the court, and be excused from
attendance at any or all proceedings.
3
No. 2011AP394-CR.npc
¶52 We have interpreted the language in Wis. Stat.
§ 971.04 and explicitly held that the statute provides a
defendant with enumerated statutory rights and further explains
when a defendant may voluntarily absent himself or herself.
State v. Koopmans, 210 Wis. 2d 670, 679, 563 N.W.2d 528 (1997).
In Koopmans, the court concluded that the use of "shall" in the
statutory language means "mandatory" unless one of the statutory
exceptions found in Section 971.04(2)-(3) applies.5 In other
(3) If the defendant is present at the beginning of the
trial and thereafter, during the progress of the trial or before
the verdict of the jury has been returned into court,
voluntarily absents himself or herself from the presence of the
court without leave of the court, the trial or return of verdict
of the jury in the case shall not thereby be postponed or
delayed, but the trial or submission of said case to the jury
for verdict and the return of verdict thereon, if required,
shall proceed in all respects as though the defendant were
present in court at all times. A defendant need not be present
at the pronouncement or entry of an order granting or denying
relief under s. 974.02, 974.06, or 974.07. If the defendant is
not present, the time for appeal from any order under ss.
974.02, 974.06, and 974.07 shall commence after a copy has been
served upon the attorney representing the defendant, or upon the
defendant if he or she appeared without counsel. Service of such
an order shall be complete upon mailing. A defendant appearing
without counsel shall supply the court with his or her current
mailing address. If the defendant fails to supply the court with
a current and accurate mailing address, failure to receive a
copy of the order granting or denying relief shall not be a
ground for tolling the time in which an appeal must be taken.
5
Wisconsin Stat. § 971.04(2) provides an exception for
misdemeanor charges and is inapplicable to this case.
4
No. 2011AP394-CR.npc
words, the use of "shall" in Section 971.04 conveys a right to a
defendant to be present at his or her trial.6
¶53 As the majority opinion outlines, the circuit judge
met with two sitting jurors separately and in chambers toward
the end of Alexander's trial. All of these conferences took
place in the presence of the Assistant District Attorney and
defense counsel, but Alexander was not present for any of the
conferences. In the first in-chambers conference, the circuit
judge questioned Juror 10 about her relationship with a woman
that the juror had recognized in the courtroom's gallery. The
second in-chambers conference involved Juror 33. After
observing a particular witness's testimony, this juror indicated
that he and the witness were acquainted. In a third in-chambers
conference, the court posed additional questions to juror 10
regarding her relationship with the woman she knew who had been
observing the trial. All three of the conferences occurred
after the jury had been sworn and, in fact, dealt with questions
surrounding whether the two particular sitting jurors could
continue their jury service.
¶54 The separate in-chambers conferences with two sitting
jurors at issue today certainly took place during Alexander's
trial. We have previously defined the meaning of trial for the
purposes of Wis. Stat. § 971.04(1)(b). State v. Anderson, 2006
6
Whether Alexander waived his right to be present at trial
ultimately depends on whether he “voluntarily absent[ed]
himself” from his trial as permitted by Wis. Stat. § 971.04(3).
I am satisfied that Alexander did, in fact, voluntarily absent
himself from the in-chambers conferences at issue here.
5
No. 2011AP394-CR.npc
WI 77, ¶42, 291 Wis. 2d 673, 717 N.W.2d 74. In Anderson, the
court defined trial as beginning with "the commencement of jury
selection" and going "through the final discharge of the jury
and at any time an action is taken affecting the accused." Id.
(citing Williams v. State, 40 Wis. 2d 154, 160, 161 N.W.2d 218
(1968)); see also State v. Miller, 197 Wis. 2d 518, 521-22, 541
N.W.2d 153 (Ct. App. 1995) ("[I]n a jury trial, 'the beginning
of the trial' occurs when jeopardy attaches; i.e., 'when the
selection of the jury has been completed and the jury sworn.'")
and Wis. Stat. § 972.07(2) (explaining that jeopardy attaches
"when the selection of the jury has been completed and the jury
sworn"). These definitions vary slightly, but both clearly
comport with the common understanding of the meaning of a trial.
In addition, both definitions squarely place the in-chambers
conferences at issue, which occurred after the jury had been
sworn in and before the jury had been discharged, as occurring
during Alexander's trial. Furthermore, the State's brief agreed
that the in-chambers conferences at issue occurred "at trial"
within the meaning of Section 971.04(1)(b).
¶55 We have never held that Wis. Stat. § 971.04(1)(b) does
not or cannot encompass circumstances where a circuit court
communicates with individual members of the jury for purposes of
determining whether these individual jurors will remain on the
jury. In May v. State, 97 Wis. 2d 175, 293 N.W.2d 478 (1980),
this court considered whether Section 971.04 requires a
defendant's presence for the court to respond to questions posed
by a deliberating jury. The jury's question concerned the
6
No. 2011AP394-CR.npc
"withdrawing from a conspiracy." Id. at 180. May held that
"the communication between the judge and jury related to a
question of law, and therefore the defendant's absence at the
time of the communication did not result in a non-compliance
with the provisions of sec. 971.04." Id. at 188.
¶56 The holding in May simply provides that a defendant's
statutory right to be present during trial does not extend to
communications between a judge and juror or jury when that
communication relates to a pure question of law submitted to the
court by a deliberating jury, and thus May is inapplicable to
this case. Here, the in-chambers conferences that occurred
between the circuit judge and the individual jurors did not
relate to a pure question of law. While the in-chambers
conferences at issue in this case could be viewed as presenting
a mixed question of law and fact to the circuit judge, the
conferences did not concern a pure question of law and did not
originate from the deliberating jury. Therefore, May is clearly
not controlling in this case.
¶57 The facts in May can be further distinguished from the
circumstances of this case. As noted, in May the court applied
Wis. Stat. § 971.04 to communications between a court and a
deliberating jury regarding a pure question of law. In
contrast, the case at hand deals with three in-chambers
conferences each with an individual sitting juror to consider
the appropriateness of each such juror continuing his or her
jury service. The communications between the judge and the
deliberating jury in May regarding a pure question of law merely
7
No. 2011AP394-CR.npc
required the judge to communicate a yes or no answer to the
jury. In contrast, the in-chambers conferences at issue today
relate to the composition of the jury, an issue of great
importance to any defendant. Communications between a judge and
juror(s) that could affect the jury's composition are distinct
from communications between a judge and a deliberating jury
relating to a pure question of law. These factual distinctions
further support the conclusion that the statutory limitation
presented in May should not extend to this case.
¶58 I agree with the State that the in-chambers
discussions with jurors at issue occurred "at trial" for
purposes of Wis. Stat. § 971.04. I would therefore hold that a
defendant has a clear statutory right under Section 971.04 to be
present at in-chambers discussions with jurors that occur during
the defendant's trial when those in-chambers conferences concern
the appropriateness of sitting jurors continuing their jury
service.
¶59 While Wis. Stat. § 971.04(1)(b) provides a defendant
with a statutory right to be present at trial, which encompasses
all of the in-chambers conferences at issue here, there is a
statutory exception to this right that is applicable to this
case. Under Wis. Stat. § 971.04(3) a defendant may voluntarily
absent himself or herself from trial, as long as he or she was
present at the start of the trial. Here, the record indicates
that Alexander did, in fact, voluntarily absent himself from all
three in-chambers conferences.
8
No. 2011AP394-CR.npc
¶60 The record indicates that Alexander knew about each of
the in-chambers conferences that occurred with the two jurors.
In addition, there is no indication that Alexander objected to
being absent from any of the conferences. Defense counsel
represented Alexander in each of the conferences and during the
first in-chambers conference waived the defendant's presence
when asked by the circuit judge. A similar colloquy between the
circuit judge and Alexander's attorney does not appear on the
record in reference to either of the other in-chambers
conferences; however, there is no indication that Alexander
asserted his right to be present in the second or third
conference.
¶61 The record indicates that Alexander's attorney
conferred with him privately in reference to the in-chambers
conference with Juror 10. Additionally, the record reflects
that Alexander's attorney informed him of the information
discussed in the first and second in-chambers conferences.
Although the record does not disclose Alexander's conversations
about the third in-chambers conference with his attorney, there
is no indication that Alexander did anything other than
voluntarily absent himself from the third in-chambers
conference, just as he had for the prior two conferences.
Strong inferences to that effect can properly be drawn from the
facts of record.
¶62 Although I would hold that Alexander had a statutory
right to be present at the in-chambers conferences that took
place during his trial, I believe the record demonstrates that
9
No. 2011AP394-CR.npc
Alexander waived his statutory right by voluntarily absenting
himself knowing that his counsel would be present.
II. ALEXANDER'S CONSTITUTIONAL RIGHT
¶63 As the majority opinion indicates, the Due Process
Clauses of the Fourteenth Amendment of the United States
Constitution and Article I, Section 8 of the Wisconsin
Constitution both provide a defendant with a right to be present
at trial. Majority op. ¶20. The United States Supreme Court
has characterized a defendant's due process right as a right to
be present at trial where "a fair and just hearing would be
thwarted by his absence." Snyder v. Massachusetts, 291 U.S. 97,
108 (1934), overruled on other grounds by Malloy v. Hogan, 378
U.S. 1 (1964). I write separately to emphasize that an in-
chambers conference that deals with the ability of sworn jurors
to continue to serve on the jury is an exceedingly important
occurrence in a criminal trial, and a defendant's absence from
it could frustrate his or her ability to have a fair and just
hearing. Therefore, I would hold that Alexander had a
constitutional due process right to be present at the in-
chambers conferences at issue but that he ultimately waived that
right.
¶64 Wisconsin case law recognizes that a defendant may
have a due process right to be present during an in-chambers
conference depending on what is discussed during the conference.
Ramer v. State, 40 Wis. 2d 79, 84-85, 161 N.W.2d 209 (1968). In
Ramer, this court held that a defendant's due process right to
be present at trial did not extend to proceedings that involved
10
No. 2011AP394-CR.npc
questions of law because fairness would not be thwarted by a
defendant's absence at proceedings that involved pure questions
of law. See id. at 85; see also May, 97 Wis. 2d at 186
(providing that a fair and just trial occurred even though the
court answered a question of law from the jury in the
defendant's absence). In doing so, however, this court has also
stated "that conferences of the court and attorneys outside the
presence of the accused should be rarely held during the trial."
Ramer, 40 Wis. 2d at 85 (emphasis added).
¶65 Here, the in-chambers conferences did not deal with
any questions of law. Instead these conferences pertained to
the appropriateness of sitting jurors continuing to serve on the
jury. The conferences at issue are quite unlike the questions
of law that the court answered outside of the defendant's
presence in Ramer and May. I would, consistent with Anderson,
hold that a defendant has a constitutional due process right to
be at in-chambers conferences dealing with the continuing
service of sitting jury members that could ultimately affect the
composition of the jury. These types of conferences could
result in an unjust or unfair trial if held without the
defendant's presence, unless the defendant has waived his or her
constitutional right to be present.
¶66 In Anderson, 291 Wis. 2d 673, ¶37, this court also
addressed a defendant's constitutional right to be present at
his or her criminal trial. Specifically, we confronted the
issue of whether communication between the circuit court and a
deliberating jury, outside the presence of the defendant,
11
No. 2011AP394-CR.npc
violated the defendant's constitutional right to be present at
his trial. Id. at ¶¶35-40. The communication between the
circuit judge and the deliberating jury involved numerous
questions from the jury regarding exhibits and the possibility
of having witness testimony read back to them. Id. at ¶10-19.
In Anderson, we held that both the defendant's constitutional
and statutory rights to be present at trial were violated when
the judge communicated with the deliberating jury outside of the
defendant's presence. Id. at ¶36. In reaching our decision on
the constitutional issue, this court relied on the
constitutional rights granted to a defendant through both the
Confrontation Clause and the Due Process Clause. Id. at ¶38
("An accused's constitutional right to be present derives from
the right to be heard and confront witnesses and from the
accused's right to due process.").7
¶67 The majority unnecessarily abandons well-reasoned
precedent set forth in Wisconsin case law to reach its
7
In doing so, we drew support from the United States
Supreme Court. State v. Anderson, 291 Wis. 2d 673, ¶38 n.13,
¶39 (citing United States v. Gagnon, 470 U.S. 522, 526 (1985)
(“The constitutional right to presence is rooted to a large
extent in the Confrontation Clause of the Sixth Amendment, but
we have recognized that this right is protected by the Due
Process Clause in some situations where the defendant is not
actually confronting witnesses or evidence against him.”)
(citations omitted); Illinois v. Allen, 397 U.S. 337, 338
(1970)(“One of the most basic of the rights guaranteed by the
Confrontation Clause is the accused’s right to be present in the
courtroom at every stage of his trial.”). We also relied upon
the United States Constitution, as well as the Wisconsin
Constitution. Id. at ¶38 (“The constitutional right to be heard
and confront witnesses appears in the Sixth and Fourteenth
Amendments to the United States Constitution and Article I,
Section 7 of the Wisconsin Constitution.” (footnotes omitted)).
12
No. 2011AP394-CR.npc
conclusion today. Specifically, the majority casts aside
longstanding precedent from Anderson and concludes that State v.
Burton, 112 Wis. 2d 560, 334 N.W.2d 263 (1983), a case that
Anderson relied upon, must be overruled.8 Its conclusion that
Burton and parts of Anderson must be overruled to decide the
case at issue is misguided and unnecessary to the court's
holding.
¶68 Neither Anderson nor Burton need be overturned to
reach a decision in this case. Both cases, in fact, are
factually distinct from the issue we have been asked to decide.
Both Anderson and Burton dealt with questions surrounding a
defendant's right to be present when a judge communicates with a
deliberating jury. In contrast, this case deals with a
8
The majority’s conclusion that State v. Burton must be
overruled is based on a supposed conflict between Burton and
May, that the majority cites, but does not explain. Considering
the factual differences between these two cases, no conflict
actually exists. In Burton, our holding that constitutional
error occurred when the circuit judge communicated with a
deliberating jury stems from our concern with the judge in that
case repeatedly entering the jury room outside the presence of
the defendant or defendant’s counsel. A judge’s presence in the
jury room outside the defendant’s presence could easily cause
unfairness that would result in a violation of the defendant’s
due process rights.
In contrast, in May v. State, 97 Wis. 2d 175 (1980), while
recognizing that an accused has the right under the Wisconsin
Constitution and the United States Constitution to be present
during her or her trial, we held that there was no reversible
error when the judge communicated an answer to a question of law
to a deliberating jury outside of the defendant’s presence. In
May, the judge simply communicated a yes or no answer to the
jury by note and did not enter the jury room or communicate
anything other than an answer to a question of law. Considering
these factual distinctions, it is easy to see how this court
found a constitutional violation in Burton, but not one in May.
13
No. 2011AP394-CR.npc
factually distinct situation involving communications between a
court and sitting jury members concerning the appropriateness of
allowing each one to continue to serve as a member of the jury.
Due to this factual distinction, there is absolutely no need to
overrule Burton, and certainty we do not have to overrule or
withdraw portions of Anderson9 to decide the case at hand. We
should refrain from unnecessarily overturning well-established
and well-reasoned precedent.
¶69 Finally, the majority is persuaded by United States v.
Provenzano, 620 F.2d 985, 997-98 (3d Cir. 1980), which found
that "there is no constitutional right for a defendant to be
present at a conference in chambers concerning dismissal of a
juror." (emphasis omitted). Such an approach has not been
followed by other federal circuit courts.
¶70 I emphasize that the approach taken by several other
courts——one that allows for the possibility that a defendant's
absence from communications between a judge and juror or jury
could result in a constitutional violation if "a fair and just
hearing would be thwarted by [the defendant's] absence"——is the
better-reasoned case law. See Verdin v. O'Leary, 972 F.2d 1467,
1482 (7th Cir. 1992) ("[I]f Mr. Verdin had a constitutional
right to be present at the exchange [between the judge and the
jury], it stemmed from his due process right to be present
9
It should be noted that Anderson and May also do not
conflict with one another. While Anderson dealt with
communication between a judge and a deliberating jury regarding
trial exhibits and testimony, May addressed a judge’s
communication with a deliberating jury when that communication
related to a pure question of law.
14
No. 2011AP394-CR.npc
' . . . to the extent that a fair and just hearing would be
thwarted by his absence.'"); Ross v. Dist. Attorney of the Cnty.
of Allegheny, 672 F.3d 198, 212-13 (3d Cir. 2012) (considering
whether a defendant's absence from a conference between trial
judge, counsel, and juror resulted in unfairness to the
defendant); United States v. Fernandez-Hernandez, 652 F.3d 56,
66 (1st Cir. 2011) cert. denied, 132 S. Ct. 353, (2011)
(discussing factors relating to whether the defendant's absence
from a bench conference with the judge, counsel, and jurors
deprived him of his due process right to be present during
trial); Moore v. Knight, 368 F.3d 936, 940-44 (7th Cir. 2004)
(evaluating various case-specific circumstances to determine
whether the defendant's trial was fundamentally unfair due to
communications between the court and jury that occurred outside
of the defendant's presence); United States v. Peterson, 385
F.3d 127, 138 (2d Cir. 2004) (reviewing whether a judge's
private in-chambers conference with a juror violated the
defendant's due process right to be present by considering the
effect of that conference on the defendant's opportunity for a
fair trial); United States v. Santiago, 977 F.2d 517, 522 (10th
Cir. 1992) (discussing the circumstances surrounding the trial
judge's ex parte questioning of a juror and the effect that
questioning would have on the defendant's constitutional
rights); United States v. Caldwell, 776 F.2d 989, 997 (11th
Cir. 1985) (considering the brevity of communications between a
juror and circuit judge, as well as other case-specific facts,
to determine if the defendant's constitutional due process
15
No. 2011AP394-CR.npc
rights had been violated); Nevels v. Parratt, 596 F.2d 344, 346
(8th Cir. 1979) (holding that defendant's absence from a hearing
with a juror about possible juror misconduct violated the
defendant's constitutional right to be present at all stages of
his trial). This more nuanced approach allows for a due process
analysis based on the individualized circumstances of each case
and better conforms with our statement "that conferences of the
court and attorneys outside the presence of the accused should
be rarely held during the trial," Ramer, 40 Wis. 2d at 85, than
does the majority's categorical approach.
¶71 Applying this approach, I would hold that due process
gave Alexander the right to be present at the in-chambers
conferences dealing with whether the jurors should continue to
serve on the jury. Alexander's presence at these conferences
was critical to the fairness of the proceedings. The importance
of a defendant's presence at proceedings involving the selection
of jurors and the continued service of jurors, which ultimately
may affect the composition of the jury cannot be overstated.
See Boone v. United States, 483 A.2d 1135, 1137-38 (D.C. 1984)
(discussing the importance of the defendant's presence at voir
dire); Welch v. Holman, 246 F. Supp. 971, 973-74 (M.D. Ala.
1965), aff'd 363 F.2d 36 (5th Cir. 1966) (discussing a
defendant's right to be present during proceedings that involve
juror qualifications).
¶72 Although I would hold that Alexander had a
constitutional due process right to be present at the in-
chambers conferences at issue, I have noted previously in this
16
No. 2011AP394-CR.npc
opinion that a defendant may waive that right. State v. Biller,
262 Wis. 472, 479, 55 N.W.2d 414 (1952). I am satisfied on this
record that Alexander did in fact waive his due process right,
along with his statutory right to be present during the in-
chambers conferences as evidenced by the record in this case.
III. CONCLUSION
¶73 Alexander had both a statutory and a constitutional
right to be present at each of the in-chambers conferences that
occurred with sitting jurors during his trial for the purpose of
determining the composition of the jury. His rights were waived
for him by his counsel and by his own actions in voluntarily
absenting himself. The Wisconsin legislature gave him the
statutory right to be present "at trial," and the in-chambers
conferences in question clearly occurred "at trial."
Additionally, Alexander had a constitutional right of due
process to be present at the in-chambers conferences because the
circumstances of this case put it into the category of cases
where "a fair and just hearing would be thwarted by his
absence."10
¶74 For the reasons stated, I respectfully concur.
¶75 I am authorized to state that Chief Justice SHIRLEY S.
ABRAHAMSON and Justice ANN WALSH BRADLEY join this opinion.
10
Snyder v. Massachusetts, 291 U.S. at 108.
17
No. 2011AP394-CR.akz
¶76 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the majority opinion because, under the facts of this case,
neither Alexander's constitutional right to due process nor his
statutory right to be present at voir dire under Wis. Stat.
§ 971.04(1)(c) were violated.1 I write separately to point out
that even if we were to conclude that a constitutional or
statutory protection was violated, the error in not having
Alexander present, under these facts, is harmless.2 Alexander is
entitled to a fair trial and impartial jury, which he received.
¶77 "Judges face tough calls in the courtroom each day.
Judges are charged with administering justice and have a
concurrent goal of avoiding unnecessary appellate issues."
State v. Tody, 2009 WI 31, ¶60, 316 Wis. 2d 689, 764 N.W.2d 737
(Ziegler, J., concurring). Here, to the extent that any issue
arose as to the two jurors who were dismissed as alternates, the
judge was properly attempting to avoid unnecessary appellate
issues.
¶78 Alexander was involved in the selection of 14 jurors.
He knew that any 12 of those 14 jurors would ultimately sit as
the final jury in this case. Alexander had no particular right
to have these two jurors remain on his jury. If anything,
1
Alexander did not argue that his right to be present at
trial under Wis. Stat. § 971.04 was violated.
2
I believe that judges around this state strive to include,
not exclude, defendants and counsel when issues arise during the
course of trial. This case illustrates why it is a good
practice to include defendants and counsel, if possible, when
matters arise during trial.
1
No. 2011AP394-CR.akz
leaving these two alternates on the jury and dispensing with two
other jurors would likely have created more issues than it
resolved. Twelve jurors, not fourteen, reach a verdict based
upon the evidence and the law. The trial court judge was
correct to select these two jurors as the alternates. Alexander
received the fair and impartial jury to which he was entitled.
¶79 For the foregoing reasons, I respectfully concur.
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No. 2011AP394-CR.akz
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